Nicholson v. Sando

Background

Charles Nicholson, a California state prisoner proceeding without a lawyer, brought a civil-rights action under 42 U.S.C. § 1983 against Correctional Officer D. Sando. Nicholson alleged that on July 29, 2019, Sando used pepper spray on him while he was attempting to enter his cell and was wearing mechanical waist restraints. Nicholson also alleged that Sando did not allow him to shower and properly decontaminate afterward, causing loss of vision and breathing problems. The court had previously found that the allegations stated possible Eighth Amendment claims for excessive force and deliberate indifference to Nicholson’s health.

Grievance Process

Nicholson filed a prison grievance on the date of the incident. The grievance alleged that Sando pushed him into his cell, sprayed him more than once, kicked him, and left him in a contaminated cell for an hour before he was taken to a shower. The grievance was processed as a staff complaint, bypassed the first level, and was partially granted at the second level. The second-level decision told Nicholson that he needed to appeal through all levels, including the Secretary’s or third level of review, to exhaust the available remedies. Records from the California Department of Corrections and Rehabilitation’s Office of Appeals showed that Nicholson did not submit the grievance to the third level.

Summary-Judgment Standard and Exhaustion

Summary judgment is a procedure for entering judgment without a trial when the evidence shows that no genuine dispute exists about a fact important to the outcome and the moving party is entitled to judgment under the law. The Prison Litigation Reform Act requires a prisoner to properly complete all available prison administrative remedies before bringing a federal lawsuit about prison conditions. The defendant bears the burden of proving both that an administrative remedy was available and that the prisoner did not use it. If the defendant meets that burden, the prisoner must produce evidence showing that the remedy was effectively unavailable in the particular circumstances.

Sando argued that Nicholson had not exhausted his remedies because he did not pursue the grievance through the third level. Sando submitted evidence that a third-level review could have identified problems with the second-level decision and led to an amended response. Nicholson responded only that he believed the second-level partial grant exhausted the available remedies. The court rejected that position because the prison regulations required review through the third level and the second-level decision expressly said so. The court also found that Nicholson did not show that the third-level process was unavailable or that he was unable to file a timely appeal.

Ruling

The court found that Nicholson failed to properly exhaust all available administrative remedies for his Eighth Amendment claims. Judge Edward J. Davila granted D. Sando’s motion for summary judgment. The Eighth Amendment claims against Sando were dismissed for failure to exhaust administrative remedies. The court denied the motion to stay discovery as moot and terminated Docket Nos. 20 and 21. The court also granted the request for judicial notice of the cited 2019 California Department of Corrections and Rehabilitation operations manual.